According to the right of withdrawal applicable until 13.06.2014, the return of the goods was sufficient as a declaration of withdrawal. Since the Consumer Rights Directive was transposed into national law on 13 June 2014, many lawyers assume that simply returning the goods is not sufficient to effectively declare withdrawal. Rather, a further, unambiguous declaration is required. This view could now be shaken.
The legal basis for the declaration of revocation is found in § 355 para. 1 BGB, which reads:
"If a consumer is granted a right of withdrawal by law in accordance with this provision, the consumer and the trader are no longer bound by their declarations of intent to conclude the contract if the consumer has revoked his declaration of intent in due time. The revocation is made by declaration to the trader. The declaration must clearly state the consumer's decision to withdraw from the contract. The revocation does not have to contain a statement of reasons. To meet the deadline, it is sufficient to send the revocation in time."
From the requirement of an unambiguous declaration, it is currently predominantly concluded that at least a note with the word "withdrawal" must reach the trader.
This interpretation is naturally not particularly consumer-friendly. This is all the more true as, according to the old legal situation, simply returning the goods was sufficient. Some authors in the literature have recently taken this as an opportunity to promote a consumer-friendly interpretation. Their arguments cannot be dismissed out of hand.
The purpose of the Consumer Rights Directive is to harmonise consumer law at European level and thus ensure good consumer protection across the board. In Germany, before the amendment of the law in June 2014, returning the goods was sufficient for revocation. The current practice therefore means a deterioration of consumer protection in Germany, which was not intended by the legislator, according to the supporters of the consumer-friendly interpretation. The directive had been misunderstood by the legislator. Article 11(1) states:
"The consumer shall inform the trader of his decision to withdraw from the contract before the end of the withdrawal period. For this purpose, the consumer may either (a) use the model withdrawal form (...) or (b) make a statement to that effect in any other form clearly indicating his decision to withdraw from the contract."
The legislator wrongly assumed that a literal declaration had to be made. However, this assumption is not supported by the text of the Directive. Since the declaration of withdrawal by returning the goods was not expressly excluded, the return of the goods had to be sufficient.
It is currently not foreseeable to what extent this view will prevail in case law. However, in view of the basically very consumer-friendly case law of the past years, it seems quite possible. However, even the consumer-friendly interpretation does not mean that returning the goods always constitutes an effective declaration of withdrawal. Rather, it must be examined in each individual case whether the trader could reasonably have understood the return of the goods only as a declaration of withdrawal. If the return can also have another meaning, a declaration of withdrawal by returning the goods is ruled out.
Please do not hesitate to contact us if you have any questions.
Goldberg Attorneys at Law 2015
Lawyer Swetlana Neufeld
E-mail: info@goldberg.de
